' Muhammad Nawaz, Sub-Inspector, Police Station, Khushab, received information on 1-12-1992 that appellant Iqbal Masih, resident of Chak No,59/MB, District Khushab was running an illicit distillery in his cattle shed situated inVillage Chak No,60/MB. The Sub-Inspector arranged a police party and at 17-15 hours raided the premises of the appellant and found a furnace working there at the time. The Sub-Inspector also found some half manufactured liquor with other pots and pans. The Sub- Inspector took into possession the aforesaid articles, arrested the appellant and sent written complaint to Police Station, Khushab for registration of the case.
2. After investigation the appellant was sent up for trial before Mr. Ejaz Hussain Khan Baloch, Magistrate 1st Class, Jauharabad who charged him under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The appellant pleaded not guilty to the charges and claimed trial.
3. The State produced 4 witnesses in proof of the prosecution case. The appellant made a statement under section 342, Cr.P.C. And produced one defence witness but he did not himself make any deposition on oath.
4. After the conclusion of the trial the learned Magistrate convicted the appellant under both the Articles 3 and 4 of the Prohibition Order and sentenced him as under :-- ' For the offence under Article 3 of the Prohibition Order the appellant was sentenced to undergo rigorous imprisonment for 3 years, to suffer 30 stripes and to pay a fine of Rs,3,000 or in default to undergo simple imprisonment for 6 months.
' For the offence under Article 4 of the Prohibition Order he was sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs,2,000 or in default to undergo simple imprisonment for 6 months.
' The convict has challenged his conviction and sentence by the appeal in hand.
5. P.W.1 A.S.I. Muhammad Ali was a marginal witness of the memos of recoveries. P.W.3 Muhammad Nawaz Sub-Inspector had deposed that he had himself raided the premises of the appellant and found the still and recovered pots and pans and material being used by the appellant in the manufacture of illicit liquor P.W.4 Nazar Muhammad A.S.I. Had received sample on 1-12-1992 which he kept in safe custody in the Police Station and handed over the same to P.W.2 Amir Muhammad F.C. On 9-12-1992 which he deposited in the office of the Chemical Examiner on 10-12-1992.
6. The learned counsel for the appellant has brought to my notice that the complainant Sub- Inspector had raided the premises of the cattleshed allegedly belonging to the appellant to carry out its search but he had not associated two respectable persons of the locality with the said search and in that way the Investigating Officer had violated the mandatory provisions of section 103, Cr.P.C. I have minutely perused the entire record of the case and I find that the complainant/Investigating Officer had carried out actual search of the premises but he had not associated two respectable persons of the locality for carrying out the said search. It was a search of premises and not search of a person and as such it was the legal duty of the investigating officer to comply with the provisions of section 103, Cr.P.C. And to associate two respectable persons of the locality with himself at the time of carrying out the search. Failure to observe the above procedure was an illegality and non-compliance of the provisions of the aforesaid law which had occasioned a failure of justice whereby the appellant had been prejudiced. The whole proceedings of raid over the aforesaid premises and search thereof were, therefore devoid of any legal authority and were invalid.
7. Consequently the appeal is accepted. The conviction and sentence of the appellant recorded on 21-11-1993 by Magistrate 1st Class, Jauharabad are set aside and he is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.